Why Law Matters

Okay, so I sound like a broken record. Or like the lawyer I used to be. But dammit, the rule of law matters. And it matters—or should—even more to those of us who are not part of “the majority” at any given time.


Maybe it is because I grew up Jewish in a small town in Indiana, where many of my classmates still genuinely believed that Jews had tails. Maybe it’s because I went to college in the South during the sixties, when we were arguing about whether black folks should get to vote or be allowed into the local movie theater. Maybe it’s because I have a gay son, and lots of gay friends and relatives. If these experiences have taught me anything, it is the critical importance of impartial, enforcable rules that apply to all citizens, whether their neighbors like them or not.


To put it another way, your fundamental rights shouldn’t depend upon the outcome of the next election.


The problem is, the rule of law—the principle that citizens should be equal before the law, and the corollary belief that no one is above the law—has been under unremitting assault by this administration, and recent events have served to underscore the degree to which our fundamental institutions have been deliberately sabotaged. Bush’s commutation of Scooter Libby’s sentence occasioned the most outrage, but travesty that it was, it isn’t the sort of  thing I’m talking about. Election of a President with a fully-developed ethical sense (okay, any ethical sense) will stop that sort of abuse.


What worries me far more are the sorts of revelations that came out recently in the Washington Post’s devastating four-part series on Dick Cheney. Sure, he’s looney—but unlike our President, he’s also smart, and he has managed to inflict real and lasting damage to our governing institutions. The problem is, that damage isn’t visible to Joe Sixpack or the various talking heads that pontificate on what passes for news these days. It’s more insidious.


Equally insidious, and even more worrisome—especially to gay Americans and other disfavored minorities—is the damage being inflicted by a generation of judicial appointees chosen for their far-right ideology rather than their legal competence.


Recently, the Sixth Circuit Court of Appeals dismissed a lawsuit challenging the President’s domestic spying program. The court didn’t uphold the NSA spying—it really couldn’t have. Instead, it ducked the question by ruling that the plaintiffs had no “standing,” no right to sue. That’s a refrain we are going to hear more and more frequently; the Supreme Court dismissed a challenge to the Administration’s “Faith-based Initiative” last month on the same basis.


To define standing in terms more relevant to the gay community, what if the Massachusetts courts had ruled that only people who were already married had “standing” to challenge Massachusett’s marriage laws?  


This sort of decision is so dangerous precisely because non-lawyers are likely to shrug it off as some legal technicality. Few citizens understand that what these courts are doing is leaving laws on the books, but rendering them essentially meaningless. You don’t really have a right if no one can enforce it.


In the domestic spying case, the court said if the plaintiffs couldn’t prove that they were personally being spied on, they couldn’t sue—they couldn’t challenge the program. But of course, the program is secret, and without the ability to challenge it and subpoena relevant information, there is no way they can ever prove that they are among those being targeted. It’s a perfect catch-22. Before this case, being in the same category as the people being watched would have been enough; indeed, it was enough for the lower court, which had ruled that the program was illegal.


As I write this, the “Backward Bush” countdown clock I’ve installed on my computer says this administration has 562 days left in office. It can still do plenty of damage, of course, but it is the judges this President has installed—with the shameful “advice and consent” of a compliant Senate—who can really turn America’s clock back. And they will be on the bench for a generation.


Canada looks better all the time.